Free Motion to Dismiss for Failure to State a Claim - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE AMRUTBHAI PATEL, and NILABEN PATEL, Plaintiffs, v. UNITED AIR LINES, INC., a Delaware corporation, Defendant. : : : : : : : : : : :

C.A. No. 08-094-LPS Jury Demand

DEFENDANT'S MOTION TO DISMISS Defendant, United Air Lines, Inc., by and through the undersigned counsel, hereby files this Motion to Dismiss Plaintiffs' Complaint pursuant to F.R.C.P. 12(b)(6) and respectfully offers the following in support thereof: Facts 1. Plaintiffs, Amrutbhai Patel and Nilaben Patel ("Plaintiffs") filed a Complaint

against United Air Lines, Inc. ("Defendant") in the Superior Court of the State of Delaware in and for Kent County, C.A. No.:08C-01-028, on January 16, 2008. Plaintiffs' Complaint alleged a cause of action for breach of contract, negligence, and willful, wanton and outrageous conduct. A copy of the Complaint is attached hereto as Exhibit A. 2. There case was removed to Federal Court pursuant to 28 U.S.C. § 1441 (b)

because Plaintiffs' Complaint is founded on claims arising under the laws of the United States. Specifically, The Montreal Convention, or the Convention for the Unification of Certain Rules for International Carriage by Air (28 May 1999) applies to the present action. 1

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3.

In the Compliant, Plaintiffs' allege the following: · In Paragraph 3 of the Complaint, Plaintiffs allege that on July 17, 2007, Plaintiff had purchased tickets and entered into a transportation contract with Defendant to be transported on flight UA 836 from Shanghai, Pu Dong (PVG) to Chicago, Illinois, O'Hare (ORD), which contract included furnishing Plaintiffs and other members of their group with Hindu meals. . ." · In Paragraphs 4 and 5 of the Complaint, Plaintiffs allege that they were not offered Hindu meals and allege they were treated with "negligent, wilful and wanton conduct by the flight attendants. . ." · In Paragraph 6 of the Complaint, Plaintiffs allege that the flight attendants' conduct toward Plaintiffs was "intentional, reckless, wanton and outrageous and resulted in severe emotional distress to Plaintiffs." · Plaintiffs demand judgment against Defendants seeking damages for "breach of contract, negligence, willful, wanton and outrageous conduct."

Legal Standard 4. A motion to dismiss under F.R.C.P. 12(b)(6) tests the legal sufficiency of the

complaint. Neitzke v. Williams, 490 U.S. 319, 326-27. A motion to dismiss is properly granted when accepting as true all non-conclusory factual allegations in the complaint and drawing all reasonable inferences in favor of the non-moving party, a plaintiff can prove no set of facts upon which relief may be granted. Phillips v. County of Allegheny, 515 F.3d 224, 233 (3th Cir. 2008). Dismissal should be granted where it appeared that plaintiff would be entitled to no relief under 2

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any state of facts which could be proved in support. Melo-Sonics Corp. v. Cropp, 342 F.2d 856, 858 (3rd Cir. 1965). Argument 5. The Warsaw Convention, as well as the Montreal Convention (Convention for the

Unification of Certain Rules for International Carriage by Air, done at Montreal May 28, 1999) governs the rights of passengers injured on international flights. El Al Isr. Airlines, Ltd. v. Tseng, 525 U.S. 155, 161 (1999). The purpose of the Warsaw Convention is to achieve uniformity of rules governing claims arising from international air transportation. 49 U.S.C.A. § 40105. The two conventions have "substantially the same preemptive effect." Paradis v. Ghana Airways Ltd., 348 F. Supp.2d 106, 111 (S.D.N.Y. 2004) aff'd, 2006 U.S. App. WESTLAW 2456499 (2d. Cir. August 18, 2006). 6. The claims alleged in Plaintiffs' Complaint are governed by the Warsaw

Convention and Montreal Convention (Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal May 28, 1999) as Plaintiffs' alleged incident occurred while Plaintiffs were onboard an international flight. 7. The liability of an air carrier for harm to passengers is set forth in Article 17 of the

Warsaw Convention. That section states that the carrier shall be liable for damages in the event of death, wounding or other bodily injury. 8. Plaintiffs' Complaint does not contain allegations of death, wounding or other

bodily injury as required by the Warsaw Convention to entitle Plaintiffs to recover. 9. As stated in Eastern Airlines v. Floyd, 499 U.S. 530, 535-536 (1991), there is no

recovery for a passenger unless the passenger satisfies three conditions: a) there has been an 3

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accident in which b) the passenger suffered death, wounding or any other bodily injury, and c) the accident took place on board the aircraft or in the course of the operations of embarking or disembarking. 10. As stated above, Plaintiffs' Complaint seeks recovery for claims of severe

emotional distress, breach of contract, negligence, willful, wanton and outrageous conduct for damages generally. 11. Plaintiffs' Complaint must be dismissed pursuant to F.R.C.P. 12(b)(6) for failure

to state a claim upon which relief may be granted. 12. Plaintiffs' allegations do not entitled Plaintiff to seek recovery from Defendant, as

Plaintiffs' Complaint fails to satisfy the conditions required by the Warsaw and Montreal Conventions. WHEREFORE, Defendant, United Air Lines, Inc. respectfully requests that this Honorable Court dismiss Plaintiffs' Complaint with prejudice.

TIGHE & COTTRELL, P.A.

/s/ Melissa L. Rhoads Melissa L. Rhoads, Esq. (DE ID # 4906) Paul Cottrell, Esq. (DE ID # 2391) 704 King Street, Suite 500 One Customs House P.O. Box 1031 Wilmington, DE 19899 (302) 658-6400 Dated: August 19, 2008

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CERTIFICATE OF SERVICE

I, Melissa L. Rhoads, Esq., hereby certify that on this 19th day of August, 2008, a true and correct copy of the foregoing Motion to Dismiss was served via electronic filing through CM/ECF, postage pre-paid upon the following counsel of record:

Nicholas H. Rodriguez, Esq. Schmittinger & Rodriquez, P.A. 414 South State Street P.O. Box 497 Dover, DE 19903-0497

_______________________________ Melissa L. Rhoads, Esq.

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